A will directs only the assets in your sole name — superannuation passes via binding death benefit nomination (not the will), joint property passes by survivorship, and insurance goes to the named beneficiary. For retirees, an integrated estate plan covers the will for estate assets and separate mechanisms for non-estate assets. Family provision laws in every state allow eligible claimants to challenge a will regardless of its instructions.
A will is foundational to any estate plan, but for most retirees it controls considerably less of their wealth than they realise. That gap between what people expect the will to handle and what it actually handles is one of the more common sources of unintended outcomes in Australian estate administration. Understanding both what the will does and what lies outside it is where integrated estate planning starts.
What assets does a will actually control in an Australian estate?
A will is the legal document that directs the distribution of your estate — the assets that flow through your legal personal representative (executor) on death. Without a valid will, the relevant state or territory intestacy rules apply, distributing assets among family members according to a statutory formula that may bear little resemblance to what you would have chosen. With a valid will, your instructions are followed, subject to the constraints of family provision law.
Estate assets that pass under a will include property held in your sole name, bank accounts in your sole name, shares and investments in your sole name, personal effects, and certain business and trust interests. The list is shorter than most people assume.
What major assets does a will not control?
For most retirees, a substantial portion of their wealth sits outside the estate entirely and does not pass under the will at all.
Superannuation does not form part of the estate on death. It is held in trust by the fund and directed by a binding death benefit nomination (BDBN), a reversionary pension arrangement, or the trustee's discretion among eligible dependants — none of which are controlled by the will. A will that instructs the executor to distribute the deceased's super in a particular way has no legal effect on how the super is paid. The super follows the BDBN or the trustee's determination, not the will.
Property held as joint tenants passes by survivorship to the surviving joint owner, regardless of what the will says. This is a fundamental feature of joint tenancy, and it applies to real estate, bank accounts, and other assets held in joint tenancy. Tenancy in common is different — each owner's share does pass through the estate — but joint tenancy is the default for many couples and it bypasses the will entirely. Insurance policies with a named beneficiary also bypass the estate.
The practical consequence for retirees is that the estate plan must be thought of as two parallel frameworks: the will for estate assets, and separate mechanisms (BDBN, property ownership structure, insurance nominations) for non-estate assets. A financial adviser and solicitor working together on this is considerably more likely to produce an integrated outcome than a will drafted in isolation.
Who should you appoint as executor of your will?
The executor is the person you appoint to administer your estate. The role involves locating the will, identifying assets and liabilities, applying for probate where required, paying debts and taxes, and distributing assets to beneficiaries. For a typical estate, this takes between six and eighteen months; complex estates take longer. Executors have legal obligations and can face personal liability for errors.
The choice of executor matters. A family member is common and familiar with the circumstances, but the executor role during a contested estate can put them in a difficult position. Multiple executors provide oversight but can be cumbersome if they disagree. A professional executor (solicitor, trustee company, or the state public trustee) adds expertise at a cost. A combination — a family member supported by a professional — often works well for larger or more complex estates. The person appointed should be capable, willing, and genuinely available for what may be a year or more of administrative work.
Who can challenge a will through a family provision claim?
Australian succession law in every state and territory allows certain people to apply to the court for additional provision from an estate where the will has not adequately provided for them. Spouses and de facto partners are virtually always eligible. Adult children are eligible in most jurisdictions. Dependants at the time of death, and in some jurisdictions stepchildren and former spouses, can also be eligible. The court considers the relationship, the person's financial circumstances, the size of the estate, other beneficiaries, and the conduct of the parties.
A will that substantially under-provides for an eligible person — or that disinherits them entirely — can be challenged successfully, sometimes with significant cost to the estate. For retirees whose planned will structure might draw a challenge (for example, in blended families where children of a prior relationship may receive less than they would under intestacy, or where a spouse is not adequately provided for), the risk of a family provision claim is a real planning consideration. A solicitor can advise on the structure of the will and on whether documenting the reasons for particular choices would be prudent.
How should blended family estate planning be structured?
Estate planning complexity increases substantially in second relationships or where there are children from prior relationships. The competing interests of a current spouse and children from a first relationship are a common source of estate disputes. Structures commonly used to balance these include a life interest in the family home for the surviving spouse, with the home eventually passing to the children of the first relationship on the survivor's death; testamentary trusts established under the will to manage each beneficiary cohort's inheritance separately; and specific gifts calibrated to acknowledge different family members without triggering disproportionate family provision claims. None of these structures is straightforward, and generic wills are rarely adequate. Specialist legal advice for blended family estate planning is not optional — it is the difference between a plan that holds and one that generates litigation.
What are testamentary trusts and when should retirees use them?
A testamentary trust is a trust established in the will, which takes effect on death. Instead of beneficiaries receiving their inheritance directly, they receive it through the trust. The tax benefit that makes testamentary trusts useful for many estates is in section 102AG of the Income Tax Assessment Act 1936: income from a testamentary trust distributed to minor beneficiaries is taxed at adult marginal rates rather than the higher penalty rates that otherwise apply to unearned income received by children under 18. For beneficiaries who are grandchildren, this can be meaningful. Testamentary trusts also provide asset protection features — assets held in a trust may be protected from a beneficiary's creditors or relationship breakdown in ways that an outright inheritance would not be.
The trade-off is cost and complexity. Testamentary trusts require ongoing administration, annual accounts, and trust tax returns. For substantial estates with beneficiaries who would benefit from the tax treatment or asset protection features, the structure is worth the complexity. For modest estates with adult children in stable circumstances, a simpler will is usually appropriate.
How often should retirees review and update their will?
A will requires review when circumstances change. Marriage typically revokes an existing will in Australian law (unless the will was made in contemplation of that marriage). Divorce revokes gifts and appointments to the former spouse under most state succession legislation. The birth of children or grandchildren, the death of a beneficiary or executor, and major changes in asset structure all warrant review. Practitioners commonly recommend reviewing the will every three to five years regardless of specific events, and immediately whenever there is a significant change in family or financial circumstances.
For retirees, the integrated estate plan — will, BDBN for super, property ownership structure reviewed, insurance nominations current, EPOA and advance care directive in place — is the framework that ensures wealth and care are handled as intended. The will is one component of that plan, not the whole of it.
Key takeaways
- A will controls only the assets that form part of the deceased's estate — property held in sole name, sole-name bank accounts and investments, and personal effects. It does not control superannuation (directed by BDBN or trustee discretion), property held as joint tenants (passes by survivorship), or life insurance with a named beneficiary. For most retirees, these non-estate assets represent a substantial portion of total wealth.
- Every Australian state and territory has family provision legislation that allows eligible claimants — spouses, de facto partners, children, and dependants — to apply to the court for additional provision if the will has not adequately provided for them. A will that disinherits or substantially under-provides for an eligible person can be successfully challenged, sometimes at significant cost to the estate. This risk is heightened in blended family situations.
- Testamentary trusts (trusts established in the will that take effect on death) provide two main benefits: income distributed to minor beneficiaries is taxed at adult marginal rates rather than penalty rates (ITAA 1936 s.102AG), and trust assets may be protected from a beneficiary's creditors or relationship breakdown. The trade-off is ongoing administrative cost — annual accounts and trust tax returns — which makes this structure most appropriate for substantial estates.
- A binding death benefit nomination operates entirely independently of the will. The will has no legal effect on how super is distributed; it is the BDBN, reversionary pension nomination, or the fund trustee's discretion that determines the distribution. An estate plan that reviews only the will without checking the BDBN is incomplete.
- Marriage typically revokes an existing will under Australian succession law (unless made in contemplation of that marriage); divorce revokes gifts and appointments to the former spouse in most jurisdictions. The birth of grandchildren, major asset changes, and the death of an executor or beneficiary all warrant immediate review. Practitioners commonly recommend reviewing the will every three to five years regardless of specific events.
Frequently asked questions
Does a will control superannuation in Australia?
No — superannuation does not form part of the estate on death and is not controlled by the will. Super is held in trust by the fund and directed by a binding death benefit nomination (BDBN), a reversionary pension arrangement, or the fund trustee's discretion among eligible dependants. A will that purports to direct the distribution of the deceased's super has no legal effect on how the super is actually paid. To ensure super is distributed as intended, the BDBN must be reviewed and kept current independently of the will.
What is joint tenancy survivorship and how does it bypass the will?
Joint tenancy is a form of co-ownership where all joint owners hold an undivided interest in the whole asset. When one joint tenant dies, their interest automatically passes to the surviving joint tenant by operation of law — not through the estate and not under the will. This survivorship feature applies to real estate, bank accounts, and other assets held in joint tenancy, and it cannot be overridden by a will. Tenancy in common is different: each owner holds a defined share that does form part of their estate on death and passes under the will.
Who can challenge a will in Australia?
Each Australian state and territory has family provision legislation that allows eligible claimants to apply to the court for additional provision from an estate where the will has not adequately provided for them. Spouses and de facto partners are virtually always eligible. Adult children are eligible in most jurisdictions. Dependants at the time of death, and in some jurisdictions stepchildren and former spouses, can also be eligible. The court weighs the relationship, the claimant's financial need, the size of the estate, other beneficiaries, and the parties' conduct. Successful claims can significantly alter the distribution of the estate.
What is a testamentary trust and who needs one?
A testamentary trust is a trust created in the will that comes into existence when the will-maker dies. Instead of beneficiaries receiving their inheritance directly, they receive it through the trust. The primary tax benefit is under section 102AG of the Income Tax Assessment Act 1936: income from a testamentary trust distributed to minor beneficiaries (grandchildren, for example) is taxed at adult marginal rates rather than the high penalty rates that otherwise apply to unearned income of children under 18. Testamentary trusts also provide asset protection — inheritance held in the trust may be shielded from a beneficiary's creditors or relationship breakdown. They suit substantial estates with beneficiaries who would benefit from the tax or protection features; for modest estates with adult children in stable circumstances, a simpler will is usually appropriate.
How often should retirees update their will?
At minimum, the will should be reviewed every three to five years and immediately after any significant change in family or financial circumstances. Marriage revokes an existing will in Australian law unless it was made in contemplation of that marriage. Divorce revokes gifts and appointments to the former spouse under most state succession legislation. The birth of grandchildren, the death of a named executor or beneficiary, major changes in asset structure (such as selling the family home or coming into a significant inheritance), or entering a new relationship all warrant prompt review rather than waiting for the scheduled cycle.